Angelis & Regoli (No 2)
[2022] FedCFamC1F 1071
Federal Circuit and Family Court of Australia
(DIVISION 1)
Angelis & Regoli (No 2) [2022] FedCFamC1F 1071
File number(s): ADC 5352 of 2019 Judgment of: KARI J Date of judgment: 19 December 2022 Catchwords: FAMILY LAW – INTERIM HEARING – Ex Tempore Reasons – Whether there should be any time spending between the child and the mother pending trial – Where the ICL supports time-spending at a contact service – Where the court finds that the supervisors proposed by the mother are not independent persons – Time spending at a contact service ordered Legislation: Family Law Act 1975 (Cth), s 69ZL Cases cited: Angelis & Regoli [2022] FedCFamC1F 450 at [26-65
Deiter & Deiter [2011] FamCAFC 82
Isles & Nelissen [2022] FedCFamC1A 97
Division: Division 1 First Instance Number of paragraphs: 63 Date of hearing: 19 December 2022 Place: Adelaide Counsel for the Applicant: Mr Anderson Solicitor for the Applicant: Belperio Clark Counsel for the Respondent: Mr Heinrich Solicitor for the Respondent: Websters Lawyers Counsel for the Independent Children's Lawyer: Mr Lewis Solicitor for the Independent Children's Lawyer: Legal Services Commission ORDERS
ADC 5352 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ANGELIS
Applicant
AND: MS REGOLI
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
KARI J
DATE OF ORDER:
19 DECEMBER 2022
THE COURT ORDERS THAT:
1.The child X (born 2015) do live with father.
2.The child X (born 2015) shall spend supervised time with the Mother at the Suburb B Children’s Contact Service, on such occasions as the Service can accommodate the parties subject to the following:
(a)There be no more than one session per fortnight which is not to exceed two hours in duration;
(b)The visits are to be at the expense of the Mother; and
(c)After six visits the Mother is to obtain a report from the Director of the Service regarding the supervised time spent with the Mother and file and serve a copy of the same annexed to an Affidavit.
3.That no later than 5.00pm on 23 December 2022 each of the parties do all such things and sign all documents necessary to enrol in the service.
4.That the parents do each forthwith undergo a hair follicle drug analysis process with the costs of such testing to be at the parties’ sole expense
5.Until such time as the hair follicle drug analysis test has been completed, the parents are restrained from:
(a)Cutting, shaving or bleaching their hair; and
(b)Using any chemicals or treatments on their hair other than commercially available shampoo and/or conditioner.
6.The parents shall each file and serve the results of the testing specified in paragraph 4 of this Order annexed to an Affidavit within 48 hours of receipt.
7.That no less than seven (7) days prior to the adjourned Mention and Trial Directions hearing the parties shall file and serve:
(a)A brief summary of the issues in dispute, together with a Minute of the specific Final Orders sought; and
(b)A Trial plan identifying the witnesses to be relied upon at Trial, an estimated length of Trial and any Subpoena which will be issued.
8.That the proceedings be adjourned for Mention and Trial Directions to 24 May 2023 at 12noon.
9.That by consent the Independent Children's Lawyer provide to the Suburb B Children's Contact Service in advance of the supervised time spending:
(a)The CPS report annexed to the Affidavit of Mr W dated 23 February 2022;
(b)The report of Ms Y dated 26 April 2022; and
(c)The report from the Department for Child Protection dated 1 June 2022.
10.That all extant interim applications do otherwise stand dismissed
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Angelis & Regoli has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
KARI J
Short form reasons
I make it clear from the outset of these reasons that I propose to give short form reasons today in accordance with the power granted to me to do so pursuant to section 69ZL of the Family Law Act 1975 (Cth).
There are a number of reasons as to why I propose to give short-form reasons today; amongst them are that I have already delivered two written judgments in this matter, one more lengthy, where I have set out some of the history of the matter in some detail. I accordingly do not propose to traverse those matters again today.
I also do not propose to give lengthy reasons because I have the benefit of the detailed case summary documents filed by counsel for each of the parties in which the history, while the parties do not agree on much - there are certain factual matters, and dates and times that are the subject of agreement, and I do not propose to traverse those matters either.
I also propose to give short-form reasons today because I am going to sit into lunch so that I am able to give reasons today.
I also I would like to make orders today which leaves the parties leaving this hearing with certainty as to arrangements moving forward. I say that because we are literally on the doorstep of the Christmas-break period, and I would like to leave the parties knowing what the future holds for them, rather than having uncertainty until I return from leave as to what those arrangements might be.
For all of those reasons, I propose to give short-form reasons.
Interim orders sought by each of the parties
The issues that are before me today relate to whether there is to be any time-spending between the child X and the mother between now and the trial date in July of next year.
The father suggests that there should not be any time-spending. The mother's position is that there should be supervised time-spending.
The mother’s application has two limbs to it. Firstly, she says that it is appropriate that there be supervised time-spending at a contact service. However, understanding that there is a wait to get into a service of at minimum six weeks, she says - and this is the second prong of her application - that there should be time-spending supervised by one or two persons known to the mother who she promotes as being independent persons.
The Independent Children’s Lawyer (‘ICL’) supports the position promoted by the mother so far as time-spending at a contact service. The ICL does not support any time-spending, supervised or otherwise, outside of the contact service.
Background
As I have indicated in earlier reasons in this matter, this matter is fraught with controversy. Each of the parties makes serious allegations about the other of them. From the mother's perspective, she makes allegations, some of which are not clear to me whether she is still pursuing, but at the very minimum I understand that the mother's allegations relate to allegations of sexual abuse perpetrated by the father, allegations that she has been a victim of serious family violence perpetrated by the father, allegations that the father is unable to meet X's needs, and allegations that the father is unable to support a relationship between the mother and X. I accept that they may not be all of the matters and concerns raised by the mother, but they are the more significant of the allegations and concerns raised by her.
At the father's end, his allegations and concerns can be summarised a little more concisely. They, essentially, are that he says that the mother's position in raising all of the concerns and allegations that she has against him while firstly, he denies them; secondly, he says that the mother has a fixated view about those matters; and in those circumstances the child's exposure to the mother's attitude about all of those matters exposes her to psychological harm.
Moreover, the father says that the psychological harm to X is compounded in circumstances where the mother holds such fixated views as she would be unable to ever support a relationship between X and the father.
The controversies between the parties are significant.
Final orders sought by each of the parties
Ultimately, the father's case now is that X live with him; that he have sole parental responsibility; that she spend no time with the mother; and that he, be able to relocate to live in New South Wales where he has family members.
The mother's position with respect to final orders is a little unclear because, as I have said it is not clear to the Court which allegations and/or concerns she intends to maintain ultimately at trial. On 22 August 2022 when the mother filed a case outline - she sought orders for the child to live in a week-about shared-parenting arrangement between the parties. Such a proposal suggests that at that juncture the mother did not hold concerns in relation to the father, his ability to meet X's needs and/or any risk factors in the father's household.
However, on 1 September 2022, a matter of mere weeks later, the mother filed an amended trial plan. By that amended trial plan, again, the mother maintains that the child live in a week-about shared parenting arrangement. The amendments in that document include concerns about the father's health being crossed out, together with the mother's allegations of violence, child abuse and health issues.
Accordingly, it is not clear to me what position the mother is ultimately likely to promote at trial in relation to a range of the issues in dispute and how that might ultimately impact the final orders that she is seeking.
Discussion
I do not intend to make an order for sole parental responsibility today or, indeed, for parental responsibility, whatsoever, given the interim nature of these proceedings. In those circumstances it is appropriate simply for me to make orders that I consider to be in X's best interests.
At this stage the mother's proposal is a limited one. It is limited against a backdrop of X going into the father's care on or about 12 May of 2022 as a consequence of events that have taken place in the context of these proceedings, which are the subject of written reasons (Angelis & Regoli [2022] FedCFamC1F 450 at [26-65]).
The mother from 12 May 2022 has not seen or spent time with X. While face-to-face time spending has not occurred, the mother has had the benefit of communication between herself and X via FaceTime. Those arrangements, however, are equally not without significant controversy between the parties.
Each of the parties raise significant concerns and allegations about the conduct of the other of them during such FaceTime, and for the mother's part she raises what can only be described as innuendo as to what I am to make of the issues she raises out of concern and/or the comments she makes in relation to matters and events that have transpired during such FaceTime communications. The father, for his part, raises concerns about the mother's conduct during such FaceTime communications.
All of the controversies to which I have just alluded to, both in relation to FaceTime but also issues which are part of the bigger matrix of issues in dispute between these parties, are not matters that I am able to determine on an interim basis.
The issue for the Court at this juncture is whether, understanding the mother's proposal for time-spending, it is appropriate and in X's best interests for there to be some time-spending pending trial.
The father's position is that it is not appropriate or in X's best interests, primarily because it is not safe for such time-spending to occur, even in a supervised, controlled environment. The father asserts that the risk of, particularly, psychological harm that X may well be exposed to by spending time with the mother is so great that a supervised regime would not be suitably protective.
The mother, for her part, asserts that supervision in all of the circumstances of this case would be suitably protective.
The issues in dispute between the parties that go to the heart of this topic, essentially, not only relate to those matters I have already alluded to regarding the father's view that the mother has a fixated view about him and is unable to support a relationship between him and X, but they ultimately stem from what the father asserts to be concerns and very significant concerns about the mother's mental health.
The father's concerns do not sit in isolation as they are not concerns that only he holds. They are shared by the Independent Children's Lawyer who, importantly, is informed by the report prepared by a Court Child Expert Ms Y who prepared a report dated 26 April 2022.
It was Ms Y’s report that ultimately led to what was intended to be a stop-gap arrangement in May 2022 for the release of the report, which saw X placed into the father's care, with a view to the Court then hearing submissions and determining the appropriate parenting arrangements moving forward.
I do not propose to comment in detail as to why it is that time-spending has not been able to occur between the mother and X since May 2022, other than to say that the conduct of the mother and/or her legal representatives (as asserted by the mother), or both, has significantly influenced that outcome.
When I make those comments I, of course, acknowledge that the mother has had a change of legal representation and counsel, and from my observation, since that change has occurred, focus has been brought to the issue that needs to be determined at this juncture, which is the question of the mother's relationship and time-spending with X. I am grateful for the approach now taken by her legal representatives in that regard. The extent to which, however, the mother has influenced the events that have transpired is likely to never be known by me because she has the benefit of legal privilege protecting the communications between herself and her lawyers.
As I have said the issue for the Court today is whether there should be a relationship and a time-spending relationship between X and her mother pending trial.
As identified by the Full Court in Deiter & Deiter [2011] FamCAFC 82 at [61]:
The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events.
Unfortunately, as identified in Deiter the assessment of risk cannot wait until every piece of evidence has been uncovered and every last submission made. The position of the father, while perhaps understandable in light of the concerns and allegations he makes about the mother, is, however, one where on an interim basis he is asking the Court to form a concluded view that the mother presents an unacceptable risk of harm.
While I will hear the father's position ultimately, that is the purpose of a trial. At this juncture the Court has to assess risk in the context of the broader picture of the litigation, particularly understanding the concerns and the allegations made by each of the parties which are to be the subject of evidence and, possibly, findings at trial.
What is exercising my mind at this juncture are two matters. Firstly, that the concerns raised by the father may be made out and what that might look like for X, if indeed I am able to make those findings. Balanced against me not being able to make findings in the way that the father suggests. I am equally cognisant that the mother makes very serious allegations and that I may or may not be able to make findings about the allegations that she makes and pursues.
Accordingly, at this juncture I am not in a position to make findings and that process will need to await trial.
As identified recently by the Full Court in Isles & Nelissen [2022] FedCFamC1A 97 the assessment of risk has a prospective and predictive element; it is informed by findings that the Court may or may not be able to make in relation to the competing and various allegations made by each of the parties.
Where at this juncture I am unable to form a concluded view as to what either of the parties asserts, it strikes me that the assessment of risk at this stage has to be informed by that uncertainty.
The assessment of risk at this stage must also be informed by the proposals that the mother in this instance promotes, being orders for supervised time spending.
The mother suggests that supervised time spending is protective because, as the name implies, the time is supervised which implies that the supervisor can intervene to prevent harmful events occurring and, indeed, to terminate time-spending if, indeed, the child is not managing and/or the mother behaves inappropriately.
I accept that in the circumstances of this case, at this juncture, supervision of time is an appropriately protective mechanism.
I note that at the outset of the hearing I made some preliminary remarks to the parties - remarks which, to some degree, continued during the course of the submissions. I have had regard to all of the comments that I have made in the submissions and interactions that I have had between bar and bench during the course of the hearing.
This matter is finely balanced. I accept that if, ultimately, the father is able to satisfy the Court that the mother presents an unacceptable risk of harm, then it may be a possibility that an order for no time-spending is an outcome that the Court will approve of. It concerns me, that if the allegations and the concerns that the father raises are ultimately made out at trial, the resumption of time-spending between X and the mother at this juncture has the prospect of being disrupted if ultimately I am satisfied that the father has made out his case.
That, however, must be balanced against the risk that the father does not make out his case, and the mother either makes out her case, or that I am satisfied that despite the father making out his case there should be a relationship between the mother and X, provided it is one that is safe.
Balancing all of those matters, in my view, leads me to a conclusion that it would be in X's best interests at this juncture to have some time-spending with her mother; however, it is my firm view that the time-spending be supervised.
I am not inclined to make an order for time-spending pending acceptance into a contact service. I accept the submissions made on behalf of the father that both of the supervisors proposed by the mother are not independent persons. While they are professionals, and by my comments I do not intend to disparage their professionalism and integrity in any way, they are aligned with the mother, and the matters raised by counsel for the father illustrate such alignment.
However, that is not the only factor I have taken into consideration when I have turned my mind to time spending pending acceptance into a contact service. I agree with the submissions made on behalf of the Independent Children’s Lawyer that independent supervision is a necessity in this matter. I accept the submissions made that the first occasion of time-spending is crucial to the ongoing success of such time-spending, and that is, in part, why I consider professional supervision to be of preference.
I also consider professional supervision to be of preference because it occurs in a controlled environment and because the Court then would have the benefit of reports from persons who regularly supervise time.
I also consider professional supervision to be more appropriate because those supervisors are experienced and adept at managing supervised time-spending and the termination of time spending, if that is a necessary intervention if one or both of the parties, or either of them, behaviour inappropriately. In addition, professional supervision is suitably reactive and protective to the way that X presents.
I also consider supervised time-spending by a professional supervisor to be preferable because it may well enable the Court to have some further evidence that will assist the Court to determine the factual issues and allegations in dispute between the parties.
It is for all of those reasons, that I consider it in X's best interests for there to be time-spending with the mother pending trial, but for such time-spending to be in the environment of a children's contact service.
Ancillary issues
There are a range of additional matters which have been promoted by, particularly, the mother.
I do not propose to touch on what is, effectively an oral application for an injunction preventing the father taking the child interstate during the upcoming Christmas period.
I say that for a range of reasons, not least of which because the orders that I propose to make are not likely to impose on or impact any time-spending arrangements between the mother and the child if indeed the father chooses to travel. I also do not propose to interfere in the parties' regular arrangements as to how they organise X's time when she is in their respective care.
The additional issues that the mother agitates today is the continuation of FaceTime time-spending. That is an order that is opposed by the father, but is supported by the ICL. At this juncture I agree that there should be the continuation of FaceTime time-spending. I say that because between now and any time at a contact service commencing that will be the only connection that this child has with her mother. Secondly, given the time-spending that is to occur moving forward once the time at the contact centre begins, it is an additional way to maintain a connection between X and her mother.
It is not, however, a decision I have come to lightly. The level of disputation that exists between these parties as to how such FaceTime has occurred, how X is behaving, the conduct of each of the parties, the probing and interrogation of X - to name a few - are matters which are deeply troubling to me because they place X at the centre of the parents' dispute on a weekly and ongoing basis.
It may be that if the concerns continue I may well be satisfied that it is appropriate to terminate such FaceTime communication, but at this time, while I am in two minds about it, I am not inclined to do so. It is something, however, that I am prepared to reconsider should the need arise moving forward.
The mother also asks the Court to make orders for the child to have counselling. The mother points to the final paragraph on page 23 of Ms Y's report as being supportive of X having counselling if there was to be a change of care. I, however, do not read that portion of Ms Y's report in the same way that the mother and/or her legal representatives do. That portion of the report indicates that the mother may well be assisted by professional support in managing, prospectively, any such change to X's living arrangements and supporting it thereafter; it does not talk of X receiving such professional assistance.
However, again, that may well be something that the Court is required to reconsider because I am mindful that Ms Y is to undertake an updated report prior to trial, and it may well be something, given matters and events that have transpired since her report prepared in April 2022, that Ms Y considers to be appropriate moving forward. At this juncture, however, I am not necessarily sure or satisfied that X would benefit or be burdened by any such counselling.
The other order that the mother promotes is an order for a regime of mutual hair follicle testing for each of the parties. The father does not necessarily consent to that arrangement, but, having heard the comments I made during the course of submissions, he does not oppose it.
While I am conscious and take on board the submissions made on behalf of the father that the mother's allegations about the father’s illicit drug use are vague and ambiguous, and they relate to a period in 2018 and 2020, hair follicle drug testing has the benefit that it will put that issue to bed once and for all, in all likelihood. I accordingly propose to make that order.
That, to my mind, covers all of the matters that the parties are in dispute about today, and, accordingly, that leaves me to make the following orders.
NOTE: These reasons were delivered orally. They have been corrected from the transcript. Topic headings have been inserted and grammatical errors have been corrected. In addition amendments have been made to make the orally delivered reasons clear and easy to read.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 19 January 2023
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